Inadmissibility and Waivers Chart

Class of Inadmissibility

NIV Waivers

IV Waivers

Aliens Previously

Removed

(INA 212(a)(9)(A));

(9 FAM 40.91)

INA 212(d)(3)(A) waiver is available. Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States. Additionally, an approved Form I-212, (Permission to Reapply for Admission into the United States after Deportation or Removal) removes this ground, but not the circumstances which led to it.

No waiver, but DHS may grant permission to reapply for admission to the United States to an alien otherwise inadmissible under this section. (Form I-212, Permission to Reapply). However, such permission to reapply does not remove the grounds which led to the alien’s denial of admission to or removal from the United States. The reason for such denial of admission or removal may lead to another ground of inadmissibility.

Aliens Unlawfully Present

(INA 212(a)(9)(B));

(9 FAM 40.92 Notes)

INA 212(d)(3)(A) Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States. Additionally, an approved Form I-212 (Permission to Reapply) for Admission into the United States after Deportation or Removal) removes this ground, but not the circumstances which led

to it.

DHS has sole discretion to grant a 212(a)(9)(B)(v) waiver in the case of an immigrant who is the spouse, son, or daughter of a U.S. citizen or LPR, if refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawful resident spouse or parent of such alien.

Aliens Unlawfully Present After Previous Immigration Violations

(INA 212(a)(9)(C));

(9 FAM 40.93 Notes)

INA 212(d)(3)(A) waiver is available. Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.

No waiver, but DHS may grant permission to reapply foradmission to the United States to an alien otherwise inadmissible under this section provided at least ten years have passed following the alien’s last departure from the United States. (Form I-212, Application for Permission to Reapply)

Class of Inadmissibility

NIV Waivers

IV Waivers

Aliens Present Without Admission or Parole

(INA 212(a)(6)(A));

(9 FAM 40.61)

This ground does not apply at time of visa application.

This ground does not apply to visa applicants.

Failure to Attend a Removal Proceeding

(INA 212(a)(6)(B));

(9 FAM 40.62)

INA 212(d)(3)(A) waiver is available. Inadmissibility applies for 5 years following departure or removal subsequent to removal hearing.

No waivers available. Inadmissibility apples for 5 years following departure or removal subsequent to removal hearing.

Fraud and Misrepresentation

(INA 212(a)(6)(C)(i));

(9 FAM 40.63)

INA 212(d)(3)(A) waiver is available. Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.

INA 212(i) waivers are available if she or he is the spouse, son, or daughter of a U.S. citizen or of an LPR, but only if the petitioner would suffer extreme hardship if the waiver were not granted; or, if a VAWA self-petitioner, the alien demonstrates extreme hardship to the alien, or the alien’s U.S. Citizen or LPR relative.

False Claim of Citizenship

(INA 212(a)(6)(C)(ii)); (9 FAM 40.63)

INA 212(d)(3)(A) waiver is available. Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.

No waiver available.

Stowaways

(INA 212(a)(6)(D));

(9 FAM 40.64)

Applies only to aliens seeking admission at a port of entry. You are not to refuse visas under this provision.

This ground does not apply at time of visa application.

This ground does not apply at time of visa application.

Smugglers (Knowingly Assisted)

(INA 212(a)(6)(E));

(9 FAM 40.65)

INA 212(d)(3)(A) waiver is available. Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.

1. INA 212(d)(11) waiver available. DHS may grant a waiver to an applicant for family-based immigration if the alien applicant had aided an individual who at the time of such action was the alien’s spouse, parent, son, or daughter entering or attempting to enter the United States in violation of the law. The brother or sister of a U.S. citizen is not eligible for this waiver.

2. DHS may grant an

INA 212 (c) waiver to a LPR who is returning to the United States after a temporary absence abroad; had illegally assisted only his or her spouse, son, or daughter, or parent, and no others; and is otherwise eligible for admission. In this way, DHS avoids penalizing too heavily aliens already admitted to the United States who were not ineligible prior to the 1990 amendments to the law, who would now be inadmissible because of the 1990 amendments, and who had assisted only a close family member’s entry into the United States.

Subject of Civil Penalty or Final Order Under Section 274C (Document Counterfeiting)

(INA 212(a)(6)(F));

(9 FAM 40.66 Notes)

INA 212(d)(3)(A)waiver available. Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.

INA 212(d)(12) waiver is available.

DHS may grant a waiver to:

1. Certain permanent resident aliens who have been abroad temporarily and are not under order of deportation; or

2. To aliens seeking admission or adjustment of status as immediate relatives or family-based beneficiaries (but for aliens seeking adjustment it must have been committed solely to assist, aid, or support the alien’s spouse or child).        

Student Visa Abusers

(INA 212(a)(6)(G));

(9 FAM 40.67)

INA 212(d)(3)(A) waiver is available. Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.

No waiver is available.

Class of Inadmissibility

NIV Waivers

IV Waivers

Crimes Involving Moral Turpitude

(INA 212(a)(2)(A)(i)(I);

9 FAM 40.21(a))

For those who do not fall under the exceptions to inadmissibility listed in 9 FAM 40.21, INA 212(d)(3)(A) waivers are available. Factors in considering whether to recommend a waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.

1. INA 212(h) waiver is available in cases where the alien’s admission to the United States would not be contrary to the national welfare, safety and security of the United States and the applicant has been rehabilitated, and the activities for which the applicant is inadmissible occurred more than 15 years before the date of visa application; or

2. For the spouse, parent, son, or daughter of a U.S. citizen or legal permanent resident (LPR) if, in the opinion of DHS, not granting the waiver would result in extreme hardship to

the U.S. citizen or LPR;

or

3. The alien is a VAWA self-petitioner.

No waiver is available if the applicant has been convicted of (or has admitted committing acts that constitute) murder, criminal acts involving torture, or conspiracy to commit either murder or criminal acts involving torture.

Controlled Substance Violators

(INA 212(a)(2)(A)(i)(II));

(9 FAM 40.21(b))

INA 212(d)(3)(A) waiver is available.

Factors to consider in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.

1. INA 212(h) waiver is available if the alien’s admission to the United States would not be contrary to the national welfare, safety, or security of the United States; and the alien has been rehabilitated and the inadmissible act occurred more than 15 years before the visa application; or

2. For the spouse, parent, son, or daughter to the U.S. citizen or LPR if, in the opinion of the Secretary of Homeland Security, refusing the waiver would result in extreme hardship to the U.S. citizen or LPR; or

3. The alien is a VAWA

self-petitioner.

INA 212(h) is only available if the violation relates to a single offense of simple possession of 30 grams or less of marijuana.

Multiple Criminal Convictions

(INA 212(a)(2)(B));

(9 FAM 40.22 Notes)

INA 212(d)(3)(A) waiver is available.

Factors to consider in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.

1. INA 212(h) waiver is available if: activities for which the alien is inadmissible occurred more than 15 years before the date of the alien’s application; the alien’s admission to the United States would not be contrary to the national welfare, safety, or security; and the applicant has been rehabilitated; or

2. For the spouse, parent, son, or daughter to the U.S. citizen or LPR if, in the opinion of the Secretary of Homeland Security, refusing the waiver would result in extreme hardship to the U.S.

citizen or LPR; or

3. If the alien is a VAWA self-petitioner.

No waiver is available if the applicant has committed murder, criminal acts involving torture, or conspiracy to commit either murder or criminal acts involving torture.

Controlled Substance Traffickers and the Spouse, Son, or Daughter of Substance Traffickers Who Obtained Financial or other Benefit and Knew or have Known that the Financial Benefit was the Product of Illicit Activity within the Past Five Years

(INA 212(a)(2)(C));

(9 FAM 40.23 Notes)

INA 212(d)(3)(A) waiver is available.

Factors to consider in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.

No waiver is available.

Prostitution and Commercialized Vice Within the Past 10 Years of the Date of Application for a Visa, Admission, or Adjustment of Status

(INA 212(a)(2)(D); and INA 212(a)(2)(A)(i)(I))

(9 FAM 40.24)

INA 212(d)(3)(A) waiver is available.

Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.

1. INA 212(h) waiver is available in cases of prostitution (D)(i)or procuring (D)(ii) if the alien’s admission to the United States would not be contrary to the national welfare, safety, or security, and the alien has been rehabilitated. In cases of other commercialized vice (D)(iii), 212(h) is available if the two conditions above are met, and all relevant criminal acts took place more than 15 years before the date of application; or

2. Available to IV applicants with a close family relationship (spouse, parent, son, or

daughter) to a U.S. citizen or LPR, if, in the opinion of DHS, not granting the waiver would result in extreme hardship to the petitioning U.S. citizen or LPR and the alien has been rehabilitated; or

3. The alien is a VAWA self-petitioner.

Certain Aliens Involved in Serious Criminal Activity Who Have Asserted Immunity from Prosecution

(INA 212(a)(2)(E))

(9 FAM 40.25)

INA 212(d)(3)(A) waiver is available. Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.

1. INA 212(h) waiver is available if the activities for which the alien is inadmissible occurred more than 15 years before the date of the alien’s application, the alien’s admission to the United States would not be contrary to the national welfare, safety, or security, and the alien has been rehabilitated; or

2. For applicants with a close family relationship (spouse, parent, son, or daughter) to a U.S. citizen or LPR, if, in the opinion of DHS, refusing the waiver would result

in extreme hardship to the U.S. citizen or LPR; or

3. The alien is a VAWA self-petitioner.

Neither waiver is available if the alien has committed murder or criminal acts involving torture, or conspiracy to commit either murder or criminal acts involving torture.

Foreign Government Officials Who Have Committed Particularly Severe Violations of Religious Freedom

(INA 212(a)(2)(G));

(9 FAM 40.26)

INA 212(d)(3)(A) waiver is available. Advisory Opinion from VO/L/A is mandatory.

No waiver is available.

Significant Traffickers in Persons and Beneficiaries, Certain Family Members of Trafficker Who Obtained Financial or Other Benefit and Knew or Have Known that the Financial Benefit was the Product of Illicit Activity in Past 5 Years

(INA 212(a)(2)(H));

(9 FAM 40.27 Notes)

INA 212(d)(3)(A) waiver is available. Advisory Opinion from VO/L/A is mandatory.

No waiver is available.

Class of Inadmissibility

NIV Waivers

IV Waivers

No Entry Documents – Immigrants

(INA 212(a)(7)(A));

(9 FAM 40.71)

Not applicable.

No waiver is available at time of visa application. However, under INA 212(k), DHS may waive this inadmissibility for an IV holder at the port of entry.

Nonimmigrants Not in Possession of Passport Valid for Six Months of Nonimmigrant Visa or Border Crossing Card

(INA 212(a)(7)(B));

(9 FAM 40.72 Notes)

INA 212(d)(4) waiver is available:

1. On the basis of unforeseen emergency in individual cases; or

2. On the basis of reciprocity to nationals of a foreign contiguous territory or of adjacent islands (and residents of those territories or islands having a common nationality with such nationals).

Not applicable.

Class of Inadmissibility

NIV Waivers

IV Waivers

Communicable Disease of Public Health Significance

(INA 212(a)(1)(A)(i);

(9 FAM 40.11)

INA 212(d)(3)(A) waiver is available.

INA 212(g) waiver is available for:

1. The spouse, unmarried son or daughter, or minor unmarried lawfully adopted child of: a U.S. citizen, an alien who has been issued an immigrant visa, or an alien who has been lawfully admitted for permanent residence; or

2. The parent of a son or daughter who is: a U.S. citizen, a lawfully admitted permanent resident alien, or an alien who has been issued an immigrant visa; or

3. A Violence Against Women Act (VAWA) self-petitioner.

Failure to Submit Proof of Vaccination

INA 212(a)(1)(A)(ii)

(INA 212(a)(1)(A)(iii); (9 FAM 40.11)

Not Applicable.

Physical or Mental Disorder and Behavior Associated with the Disorder Which May Pose, or Has Posed a Threat, to Property or Safety, of the Applicant or Others and Which is Likely to Recur

(INA 212(a)(1)(A)(iii);

9 FAM 40.11)

212(d)(3)(A) waiver is available, subject to conditions proposed by the Department of Health and Human Services (HHS), such as a requirement that a family member or medical escort accompany the applicant.

(9 FAM 40.11 N13)

INA 212(g)(3) waivers are granted at the discretion of DHS in consultation with HHS. Waivers may be subject to conditions proposed by the Department of Health and Human Services, such as the giving of bond or requirement

that a family member or medical escort accompany the applicant.

Drug Abuser or Addict, one who has engaged in “non-medical use of a controlled substance.”

(INA 212(a)(1)(A)(iv);

(9 FAM 40.11 N12)

212(d)(3)(A) waiver available upon recommendation of the consular officer to DHS/USCIS. (9 FAM 40.11 N13.2 and N14)

No waiver is available. However, a “CLASS A” inadmissibility finding by the panel physician may be overcome in the future according to CDC guidelines. (9 FAM 40.11 N13.2)

Class of Inadmissibility

NIV Waivers

IV Waivers

General Prejudicial Activities: Espionage, Sabotage, or Prohibited Export of Sensitive Technology, or Sensitive Information

(INA 212(a)(3)(A));

(9 FAM 40.31)

No waiver is available but the inadmissibility applies only to current circumstances.

Mandatory Security Advisory Opinion (SAO)

required for inadmissibility finding.

No waiver is available but inadmissibility applies only to current circumstances.

Terrorist Activities

(INA 212(a)(3)(B)); (9 FAM 40.32)

INA 212(d)(3)(A) waiver is available. SAO to VO/L/C is mandatory.

No waiver is available.

Entry Would Have Potentially Serious Adverse Foreign Policy Consequences

(INA 212(a)(3)(C));

(9 FAM 40.33)

No waiver is available but inadmissibility applies to current circumstances. SAO is mandatory for inadmissibility finding.

No waiver is available but inadmissibility applies to current circumstances. SAO mandatory.

Membership or Affiliation with Communist or Other Totalitarian Party, Domestic or Foreign (applies only to immigrants)

(INA 212(a)(3)(D));

(9 FAM 40.34)

INA 212(a)(3)(D) waiver available. Also, there are exceptions contained in INA 212(a)(3)(D) relating to past membership and/or involuntary membership.

Participation in Nazi Persecutions or Genocide and Commission of Acts of Torture or Extrajudicial Killings

(INA 212(a)(3)(E));

(9 FAM 40.35(a) and 9 FAM 40.35(b))

INA 212(d)(3)(A) waiver is available for acts of torture or extrajudicial killing.

SAO mandatory for finding.

No waiver is available.

Associations with Terrorist Organizations

(INA 212(a)(3)(F));

(9 FAM 40.36)

INA 212(d)(3)(A) waiver is available.

SAO mandatory

No waiver is available.

Recruitment or Use of Child Soldiers

(INA 212(a)(3)(G));

(9 FAM 40.38)

INA 212(d)(3)(A) waiver is available.

SAO mandatory

No waiver is available.

Class of Inadmissibility

NIV Waivers

IV Waivers

Public Charge

(INA 212(a)(4)(A));

(9 FAM 40.41)

The refusal on this ground may be overcome.

Typically, refusals are overcome if an applicant presents evidence that convinces the consular officer that the inadmissibility no longer applies.

No waiver is available. Applicants may overcome the finding by presenting evidence to convince you that the inadmissibility no longer applies. While there are provisions for overcoming the inadmissibility by posting a bond with DHS, the applicant is still subject to Affidavit of Support (AOS) and income requirements. Consequently, there are

few circumstances in which a bond would be offered as an alternative to the AOS.

Class of Inadmissibility

NIV Waivers

IV Waivers

Aliens Entering the United States to Perform Skilled or Unskilled Labor Whose Intended Employment Has Not Been Certified by the Department of Labor or Who is Unqualified for His/Her Certified Employment.

(INA 212(a)(5)(A));

(9 FAM 40.51)

Not applicable to NIV.

No waiver is available at time of visa application. However, under INA 212(k), DHS may waive this inadmissibility for an IV holder at the port of entry.

Unqualified Physicians

(INA 212(a)(5)(B));

(9 FAM 40.52)

Not applicable to NIV.

No waiver is available.

Uncertified Foreign Health Care Workers

(INA 212(a)(5)(C));

(9 FAM 40.53 Notes)

Discretion must be applied on a case-by-case basis; reference 9 FAM 40.53 N3.

No waiver is available, but this can be overcome. See 9 FAM 40.53 N1.

Class of Inadmissibility

NIV Waivers

IV Waivers

Permanently Ineligible for Citizenship (Immigrant Visas)

(INA 212(a)(8)(A));

(9 FAM 40.81 Notes)

Not applicable.

No waiver is available. INA 212(c) relief is available for certain returning residents. Advisory Opinion required.

Any Alien Who Departed from or Remained Outside the United States to Avoid Service in the Armed Forces in Time of War or National Emergency

(INA 212(A)(8)(B));

(9 FAM 40.82 Notes)

INA 212(d)(3)(A) waiver is available. Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.

No waiver is available. INA 212(c) relief is available for certain returning residents.

Class of Inadmissibility

NIV Waivers

IV Waivers

Practicing Polygamists

(INA 212(a)(10)(A));

(9 FAM 40.101)

Not applicable.

No waiver is available.

INA 212(c) relief is available for certain returning residents.

Guardian Required to Accompany Helpless Alien

(INA 212(a)(10)(B));

(9 FAM 40.102)

Not applicable at time of visa application. This is applied only at the port of entry (POE) by DHS.

Not applicable at time of visa application.

International Child Abduction

(INA 212(a)(10)(C));

(9 FAM 40.103 Notes) 

212(d)(3)(A) waiver is available.

Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.

No waiver is available.

Unlawful Voters

(INA 212(a)(10)(D));

(9 FAM 40.104 Notes)

212(d)(3)(A) waiver is available.

Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.

No waiver is available.

Former Citizens Who Renounced Citizenship to Avoid Taxation

(INA 212(a)(10)(E));

(9 FAM 40.105 Notes)

212(d)(3)(A) waiver is available.

Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.

No waiver is available.

Class of Inadmissibility

NIV Waivers

IV Waivers

Educational Visitor Status: Foreign Residence Requirement; Waivers

(INA 212(e));

(9 FAM 40.202)

The foreign residence requirement of INA 212(e) may be waived by the Department of Homeland Security (DHS) upon recommendation from CA/VO/L/W.

The foreign residence requirement of INA 212(e) may be waived by the DHS upon recommendation from CA/VO/L/W.

Presumption of Immigrant Status

(INA 214(b));

(9 FAM 40.203 Notes)

No waiver is available.

Not Applicable.

Alien Who Knowingly Made a Frivolous Application for Asylum

(INA 208(d)(6));

(9 FAM 40.206)

No waiver is available.

No waiver is available.

Aliens Involved in Confiscation of Property of U.S. Nationals

(Section 401 of Public Law 104-114);

(9 FAM 40.207 Notes)

Where the Secretary of State finds, on a case by case basis, that the entry into the United States of the person who would otherwise be inadmissible under this section is necessary for medical reasons or for purposes of litigation of an action under Title III.

No waiver is available.

Aliens Involved in Confiscation of Property of U.S. Nationals

(Section 401 of Public Law 104-114);

(9 FAM 40.207 Notes)

Where the Secretary of State finds, on a case by case basis, that the entry into the United States of the person who would otherwise be inadmissible under this section is necessary for medical reasons or for purposes of litigation of an action under Title III.

No waiver is available.

Aliens Involved in Political Killings

(Section 616 of Public Law 105-277);

(9 FAM 40.208)

No waiver is available.

No waiver is available.

Suspension of Entry or Imposition of Restrictions by President

(INA 212(f))

No waiver is available.

No waiver is available.

Visa Overstay

(INA 222(g));

(9 FAM 40.68 and 9 FAM 41.101)

No waiver except where extraordinary circumstances are found by the Secretary of State to exist.

Not applicable.

Persons Engaged in Forced Abortions or Sterilization

(8 U.S.C. 1182(e))

If the Secretary of State determines that it is important to the national interest of the United States to do so and provides written notification to the appropriate congressional committees containing a justification for the waiver.

Not applicable.

Chinese and Other Nationals Engaged in Coerced Organ or Bodily Tissue Transplantation

(8 U.S.C. 1182(f))

If the Secretary of State determines that it is important to the national interest of the United States to do so, and no later than 30 days after the issuance of a visa, the Secretary provides written notification to the appropriate Congressional committee containing a justification for the waiver.

Not applicable.

Persons Credibly Alleged to Have Aided and Abetted Colombian Insurgent and Paramilitary Groups

(Section 3205 of Public Law 106-246)

1. If the Secretary of State finds, on a case by case basis, that the entry into the United States of a person who would otherwise be inadmissible under this section is necessary for medical reasons.

2. To permit the prosecution of such person in the United States or when the person has cooperated fully with the investigation of crimes committed by individuals associated with the Revolutionary Armed

Forces of Columbia (FARC), the National Liberation Army (ELN), or the United Columbian Self Defense Organization (AUC).

3. The President may waive the limitation if he determines that the waiver is in the national interest.

No waiver is available.